Prepare for Mediation
So you have the big mediation date planned. You hope the mediator will be able to work whatever magic she has so you can move the case to settlement and put the case to bed. You’ve prepared yourself. You know the law. You have your arguments ready. You’ve done your study of the facts. But you forgot something crucial. You forgot to prepare the most important person to your case—the person who actually has decision making power—your client!
Clients who prepare for mediation simply do better. Client preparation significantly increases the chances of reaching a settlement. Preparation is an often overlooked component of successful dispute resolution. Importantly, clients are happier when they can settle outside of court. So, here are seven tips to prepare your client for mediation.
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#1: Make sure the client understands the mediation process.
To prepare your client for mediation, it’s important for them to be clear on what is expected of them in mediation, and what the role of the mediator will be. Mediation is not court. It is not counseling or therapy. It’s a negotiation facilitated by a third-party neutral.
The mediator is there to facilitate and to help people bridge their gaps from a neutral perspective. The mediator doesn’t give legal advice and doesn’t get a tie-breaking vote if the clients disagree.
All decisions are up to the parties to mutually agree. Mediation does not require people to get along. A good mediator will facilitate the conversation and bring balance — even in cases where one party may be a better negotiator than the other.
#2: Educate your client on the relevant law.
It really helps if your client is prepared and armed with information. This reduces the amount of time the mediator has to spend educating the client. If they know what their rights are before they come, then they are more able to consider proposals for settlement.
Also, assure them no one will be expected to sign binding agreements without the advice of counsel. This goes a long way toward calming any fears of being “tricked” into an agreement.
#3: Prepare your client to manage emotional responses.
People come to their conflicts with a myriad of emotions. Most of us, whether we admit are not, make most of our decisions through the lens of our emotions. This is fine unless the emotions become so intense that we lose our ability to think rationally. In divorce cases in particular, emotions affect almost all of the clients decisions. Sometimes parties themselves in the difficult state of fight or flight and are unable to think clearly. If left unmanaged, a negative emotion can make reaching accord much harder.
Consider mental health professionals to coach the client.
If you are like most attorneys, you have not been trained in psychology. It’s good practice to know where your limitations are. Why not involve a mental health professional to act as a divorce coach to prepare clients to prepare themselves emotionally for what might be a challenging meeting.
Help the client come up with strategies to stay calm to help with rational decision making.
Coach your clients on the importance of managing one’s own emotional responses. It’s good to normalize coping tools such as taking a break or breathing. If you are going to be there with your client during the mediation, come up with a signal, such as a keyword or a hand gesture, to indicate when a person is loosing it. That way, when the signal is given, you can take your client outside to calm down.
A good mental health professional can even help the client come up with mindfulness tools to keep them grounded. You want your client to bring his or her best self so that she or he can negotiate rationally.
#4: Make sure your client realistically understands their best alternative to alternative to a negotiated agreement (BATNA).
It’s common for a client to have unrealistic expectations about how good their case is. They may believe that their case is a slam dunk and that all they need to do is get in front of a judge so that can explain their case. Naturally, the judge will see it their way.
But we all know that such is not always the case. In Roger Fisher and William Ury’s seminal work, Getting to Yes: Negotiating Without Giving In, Fisher and Ury coined the phrase of the “Best Alternative to a Negotiated Agreement” (BATNA for short). This is basically your client’s best case scenario if they end up in front of a judge. A strong BATNA can empower decision making.
A client with an overoptimistic BATNA will make choices that put them at risk. If they have a more realistic BATNA, it’s an important tool in negotiating a mediated agreement. If a proposal is superior to your BATNA, then should take it. Having a proposal that is worse than your BATNA will result in a person being less like to accept a proposal.
Be careful, however, that you as the professional also have a realistic BATNA. I can’t tell you how often I have seen attorneys poorly advise their client because of an unrealistic BATNA. They then go to court and sometimes get an unpleasant surprise. So make sure you are thinking things all the way through yourself!
#5: Make sure your client realistically understands their worst alternative to a negotiated agreement (WATNA).
Fisher and Ury also teach us the phrase “Worst Alternative to a Negotiated Agreement” (WATNA for short). Basically, the WATNA is the worst case scenario if your client ends up in court. Sometimes a proposal is worth taking simply because it could be so much worse. It’s a strategy of minimizing risk.
If your client is unrealistic about the worst case scenario and therefore has an uninformed WATNA, that can be very dangerous. Your client may walk away from a deal that minimizes risk because he or she doesn’t understand how bad it can be. Just like with the BATNA, make sure you are being realistic too.
I’ve seen a lot of attorneys advise their client not to accept a reasonable proposal only to go to court and do worse. Client’s don’t love it when that happens- especially if they acted on your advice. So, make sure you’ve got the BATNA right and be ready to move your BATNA or your WATNA once you get into the negotiation and learn new information.
#6: Get the client away from a fixation on things being “fair.”
Fair is the “F” word. Instead, focus on making a “good business decision.”
In negotiations, “fair” is largely meaningless. What one person may define as fair may be worlds apart from what the other party defines as fair. I find it best not to got there. Fair is the “F” word in my conference room.
Rather, I coach my clients to leave “fair” behind and stretch for a good business decision. If everybody is giving something up and a little disappointed, that means we are compromising… and that is GOOD.
Help your clients look for an agreement they can live with rather than an agreement that will conform to a mythical understanding of fairness. Sometimes, the deal won’t ever be perfect. But if you want your client to stay out of court, it may just have to be good enough.
See also: Why “Fair” is the F-Word in Divorce Negotiations
#7: Teach your client how to make realistic proposals.
He or she isn’t negotiating to get a bargain on a used car. It is a waste of time to offer terms pushing the extremes with the sole intention of pushing the other party to come closer a desired result. It is the road to frustration, mediation breakdowns, and a date in court in front of a judge.
See also: Tips on Making and Receiving Proposals
Download our free tip sheet to
make sure you have prepared
your clients for success in mediation.
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Early intervention: Why mediation early in a family law case can save a fortune in fees and stress.
Neutral Private Settlement Conference
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In this day of #MeToo, one lawyer learned this lesson the hard way when he received a public hand slap from the Court of Appeal of the State of California because of “highly inappropriate” rhetoric he chose to employ in his appellate brief on a defamation case, Briganti v. Chow 19 DJDAR 10941 (11-22-19) (DCA 2).
